Opinion
March Term, 1903.
Judgment unanimously affirmed, with costs, upon opinion of referee. The following is the opinion of the referee:
This is an action of trespass, brought to try the title to a strip of land, a mile and a quarter wide and about seven miles long, lying immediately south of and having as its north boundary line the south fence of a park in the Adirondack forest belonging to the plaintiff, and known as "Litchfield Park." The plaintiff purchased, in the year 1893, from the estate of one Robert Gilchrist, the south one-third of township 25, McComb's purchase, great tract 1, Franklin county, and thereupon proceeded to inclose the land so purchased, or a portion thereof, as he now claims, with a wire fence, the length of the fence corresponding on each side of the inclosure to the required distance called for by the deed, and the inclosed land likewise corresponding to the call of the deed in number of acres. At the southwest corner of the park, as inclosed, he placed a monument marked "E.H.L., 1893, S. 1/3 XXV.," and he has ever since occupied, as his purchase under such deed, the land so inclosed and no other. He now claims to own, as a part of such purchase, and as a part of township 25, great tract 1, McComb's purchase, the strip of land described in the complaint, being an additional 5,000 acres and more of land over the call of the deed. The plaintiff, traces title through a patent of McComb's purchase, great tract 1, granted by the State of New York in the year 1798 to one Daniel McCormick. McCormick deeded an undivided one-third thereof to William Constable in the same year, and in the year 1801 McCormick and Constable executed a deed to Hammond, Fowler, Gilchrist and Dayton, whereby as a part of a voluntary partition of McComb's purchase, great tracts 1, 2 and 3, the south one-third of township 25 was conveyed to the said Hammond, Fowler, Gilchrist and Dayton. This deed recites that the parties thereto were the proprietors, in different proportions, of all of great tracts 1, 2 and 3, and that they had caused a survey thereof to be made by one Benjamin Wright, "and the same to be divided into sixty towns, whereof the said tract No. 1 contains twenty-seven, the said tract No. 2 contains eighteen, and the said tract No. 3 contains fifteen townships, as by the field book and map thereof, made by the said Benjamin Wright, may appear," and conveys as follows: "And also the southern third part of all that certain town or parcel of land distinguished in the said field book as town No. 25 of the first of the said Great Tracts, which same town begins at the southwest corner of town No. 2, in Great Lot No. 1, at a stake 11 links west from a hemlock cornered and marked 'T. No. 22-25,' and runs from thence east, as the magnetic needle pointed in 1800, along a line of marked trees and bounds of town No. 22, 493 chains and 50 links to a stake 32 links south from a beech, cornered and marked 'T. No. 22-23-25-26;' thence south, along a line of marked trees, as the needle pointed in 1799, by the bounds of town No. 26, 513 chains to a stake 8 links north from a cedar, cornered and marked 'T. No. 25-26;' thence south, 89 degrees 45 minutes west along the south line of Great Lot No. 1, 512 chains to a stake 10 links southeast from a spruce, cornered and marked 'G.L. 2, G.L. 3, T. No. 3, T. No. 25;' thence north, as run by M. Mitchell in 1796, along a line of marked trees and bounds of town No. 3,520 chains to the place of beginning, containing 25,964 acres of land; and the said southern third part of the said town is bounded southerly, easterly and westerly by the line of the said town, and northerly by a line to be drawn parallel to the northern line thereof.". It does not appear that the grantees in this deed, prior to the execution thereof, owned any portion of the land so as above conveyed, and, therefore, the title acquired by them and their successors and assigns is limited by the description therein contained. Not only does this deed describe the land conveyed as the south one-third of township 25, as appears from the field book of Benjamin Wright, but the only other monuments mentioned therein, such as marked trees and stakes, were monuments created and adopted by Benjamin Wright himself, as forming the bounds of such township as mapped by him, as will appear from an examination of his field book, which is in evidence. It is unimportant that the south line, which is expressed by the deed to be monumented at each end by stakes and cornered trees, is said to run along the south line of great lot 1, for monuments and maps prevail, and the south line of great tract 1 at this point was not marked or mapped except by Wright himself, and at no point by any monuments marking a line other than a line of which Wright's line was not a continuance. This deed was followed by a further partition deed to Fowler, Gilchrist and Dayton in the same year, conveying the southern one-third of great tract 1, township 25; by a partition deed in the year 1803, from Dayton to Gilchrist and Fowler, conveying the south one-third of township 25, in great tract No. 1; by a partition deed in the year 1803 from Dayton to Fowler and Gilchrist, conveying the south one-third of township 25, in great tract No. 1, "containing, according to the survey of the said Benjamin Wright, 8,654 acres of land," and by a tax deed in 1851 from the State to Gilchrist, from whose estate plaintiff obtained title in 1893 of such south one-third with the acreage named as 8,654 acres. What, then, did Gilchrist have to convey to plaintiff, and what did plaintiff receive thereby? Clearly nothing but the south one-third of township 25, great tract 1, Township 25 was created, surveyed and mapped, as also were the other townships in great tract 1, by Benjamin Wright, under the direction of the owners of all of such great tract, who thereafter conveyed solely according to such township divisions, maps, surveys and field books by him made. There is no other township 25 than Benjamin Wright's township, and no south one-third of any other than Benjamin Wright's township 25 is owned by plaintiff. It matters not, therefore, in this inquiry, whether Wright, in his division of great tract 1 into twenty-seven townships, as directed by the proprietors of that tract, located the south line of McComb's purchase a mile and a quarter too far north, for it was divided only as divided by him, and if there be any land south of the south line of township 25, as surveyed by Wright, which forms a part of great tract 1, as originally conveyed, nevertheless that land does not belong to plaintiff. Wright's original field notes and map of township 25 are in evidence. Several witnesses were sworn in this case who had, in the year 1900, actually located the line blazed by Wright 100 years previous as the south boundary line of township 25, and the location of that line, as was testified to, cannot be seriously disputed. That line corresponds with slight variations — never more than 100 feet — to the south line of Litchfield's Park, as inclosed, and no trespass upon any land north of the Wright line, as so located, is proven. For this reason, it appears to me, plaintiff must necessarily fail in this action. Even admitting, however, that plaintiff's south line is identical with the south line of great tract 1, McComb's purchase, it appears to me, nevertheless, that he cannot successfully maintain this suit. The original patent to Daniel McCormick gives the south line of McComb's purchase, great tract 1, as the north line of "a tract of land commonly called Totten Crossfield's Purchase." Prior to the year 1798, and back to the year 1772, there was no conveyance of the lands immediately south of the McComb purchases except the so-called Indian deed executed in that year to the Crown of Great Britain. In that year, certain Indians mentioned by name and distinguished by the title "Native Indians of the Mohock Castle," conveyed to his Majesty, King George III, a tract of land previously petitioned for by Joseph Totten and Stephen Crossfield, and their associates, the east line of which is described as running from a certain other purchase in the northwest course until such line should be intersected by a "line coming west from ten miles north of Crown Point," thence east, etc.; thus making the north boundary thereof "a line coming west from ten miles north of Crown Point." It is undisputed that the land on either side of a line so drawn — whether that line be located where the plaintiff claims or not, and so far as it traverses either Totten Crossfield's or McComb's purchase — passes through an unbroken forest, the land on either side of which has always been wholly unoccupied. It is plaintiff's claim, therefore, that the location of the boundary line between Totten Crossfield's and McComb's purchases — and, therefore, the south boundary line of his tract — is governed solely by the line designated as the north boundary line of Totten Crossfield's purchase in the Indian deed. The phrase "coming west" is treated by both sides as meaning magnetic west, and "Crown Point" as "Crown Point Fort" in Lake Champlain. If "true west" were intended, and Litchfield's south line was governed by this description, then he is already too far to the south, for a parallel of latitude running through a point ten miles north of Crown Point would pass through Litchfield Park over four miles to the north of the south line of Litchfield Park as fenced. Without actual observations on the ground made at the time, the problem where a line coming magnetic west, in the year 1772, from such point, would actually strike when the northeast corner of Totten Crossfield's purchase, thirty-seven miles distant, was reached, so as to determine the exact location of that corner and where it would run for fifty miles further, so as to fix the exact division line between McComb's and Totten Crossfield's purchases, appears to me insoluble. Eliminating all questions of so-called "local variations," not only does the compass vary in any particular region very perceptibly from year to year, and again as you go east or west, but the extent of those variations is not determinable by any fixed rule, so that given the variation in a certain year and place, one cannot determine with accuracy the variation at that point in some other year, or at some other point in the same year, and even less the variation when both the place and time are different. Variations of the compass in the region east of Buffalo have always been to the west of north, and since the beginning of the century have been on the increase, but that increase has been without uniformity. Toward the end of the last century the variations were on the decrease. The exact period when decrease ceased and increase began differs widely in localities not at all remote from one another. So far as appears from the elaborate tables of Professor Schott, which the plaintiff's expert, Mr. Harrison, makes the basis of his calculations, no observations were taken in the State of New York as early as the year 1772, except in the city of New York. Mr. Harrison bases his calculations upon observed declinations at Burlington, twenty miles north of Crown Point; at Pierrepont Manor, 130 miles west, and Buffalo, 300 or more miles west, at a time several years later than the year 1772, and upon some theory of "proportion" to time and distance, the formula for which is not given, and swears to the conclusion that the variation at a point ten miles north of Crown Point in the year 1772 was seven degrees west, at Litchfield Park was six degrees twenty minutes west, and that a line drawn from such point on the mean of these two variations, to wit, six degrees forty minutes, would pass Litchfield Park one mile and a quarter to the south of plaintiff's south fence. The conclusion is based, however, upon a theory of uniformity of variation according to time and place which does not, in fact, exist. If it did, what need for the enormous labor of Professor Schott in collecting and tabling observed declinations at countless places scattered all over the world, and at every possible period of time? If there were any uniform law, or law of "proportion" governing variations, then one observation at any one place or time would determine variations for all other times and places. Professor Schott himself speaks of this method of obtaining declinations as follows: "The process is thus one of a tentative character, and the formulæ are empirical. Employing a formula of interpolation capable of representing the phenomenon as far as observed, it would manifestly be unsafe to extend the numerical results much beyond the limits of observation. They are here given within proper and safe limits, and should not be transcended unless it should be found that the results are sustained by additional observations." The attempt on the part of the plaintiff to show the variation at Litchfield Park in the year 1772 by deduction from observed declinations — the nearest of which to the east was fifty miles distant, and the nearest on the west was at least eighty miles distant, all of which were taken several years subsequent to the required year, and during the uncertain period when the needle was beginning the end of its swing toward the true north, or commencing its swing back to the west — is certainly, in the language of Professor Schott, extending "the numerical results much beyond the limits of observation," and is manifestly unsafe and unreliable. Isogonic charts introduced in evidence by the plaintiff, and from which Professor Harrison claims to be able to draw his curved line west from a point ten miles north of Crown Point, as it was according to the magnetic needle in the year 1772, are themselves the best proof of the uncertainty and unreliability of any theoretical line based entirely upon observations, distant in time and place from the territory in question, and without actual observations at the required time and place, for those lines themselves possess no regularity, but, on the contrary, are erratic, subject to wide departures, and violent and inexplicable changes and curves. In the year 1772 Archibald Campbell did run an east and west line, as the magnetic needle then pointed, supposedly along the border line between Totten Crossfield's purchase and the McComb purchase, the eastern end of which approached very nearly to the plaintiff's south fence. The line was located by many of the witnesses in the case, and the present course is given as three degrees forty-seven minutes south of the present magnetic east. An observation taken to-day at Litchfield Park would determine the present variation of the compass from the true north, and thus the exact variation in the year 1772 at that point could be determined. Now, it is true, as a general proposition, with some exceptions, that as we go east the declination increases; so, that, having by this process first ascertained with precision the variation at Litchfield Park in the required year, the minimum departure from a parallel of latitude running through a point ten miles north of Crown Point, of a line coming west on a magnetic bearing in the year 1772, could have at least been determined. So the determination by actual observation of the present declination of the needle at a point ten miles north of Crown Point, would, assuming the increase in variation at Crown Point and at Litchfield Park since the year 1772 to have been the same, have enabled the plaintiff, with a greater degree of accuracy than by Harrison's method, to have determined the variation in that year at such point, and thus to have located more definitely the course of the line, having the mean of the variations at each end thus obtained. The plaintiff has neglected to take steps to determine the question by any such practical methods, relying solely upon evidence which appears to me of too speculative and uncertain a character to form a basis for the settlement of this issue. It is not improbable that the plaintiff had within his knowledge, at the time of the trial of this suit, the exact variation of the compass from the true north at Litchfield Park in the year 1772, as indicated by the Campbell line, for his witness Raymond took an observation in the year 1899, at a point near his south line, for the purpose of determining latitude and longitude, and as a preliminary step must have ascertained the true north. Here was an opportunity presented to determine without additional effort the present variation of the compass, the present variation of the Campbell line and thus the variation in the required year. The silence of this witness, or the neglect of the plaintiff to produce such data, is significant. The location, however, of the south boundary line of McComb's purchase, and the north line of Totten Crossfield's purchase does not appear to me to rest upon the question where a line coming west from a point ten miles north of Crown Point would run. The Indian deed of 1772 was the outgrowth of a petition from Joseph Totten and Stephen Crossfield, and their associates, to the Colonial Governor of New York for leave to purchase of the Indians, and thereby vest in the Crown of England a large tract of land described as in such deed, so that the petitioners might obtain patents therefor. This was approved by the Governor's Council on June 7, 1771, and leave granted. Subsequently, one Archibald Campbell was employed by the petitioners to survey off the tract so petitioned for. Whether the survey was made by him prior or subsequent to the date of the Indian deed does not distinctly appear. That deed bears date in the year 1772, but no month or day is given. In a petition presented to the Colonial Governor, by Totten Crossfield and their associates, dated March 3, 1773, the date of the Indian deed is given as the 29th and 30th of July, 1772. The agreement to employ Campbell was entered into March 27, 1772. Campbell's field notes, which are produced in evidence, bear date in the year 1772, no month or day being given. The first page of these field notes, however, bears this inscription: "A field book of the survey of the west bounds and part of the north bounds of the lands purchased for the benefit of Joseph Totten and Stephen Crossfield and their associates, 1772, Arch'd Campbell." The word "purchased" here used indicates that the conveyance from the Indians had previously been consummated. This is borne out by the fact that the survey was made, as Campbell says, in company with some of the Indians who were deputed by "the original proprietors" to attend such survey, by the fact that the Indian deed fails to mention the survey, and by a statement made in a subsequent memorial from Totten Crossfield, petitioners, to the Colonial Governor: "That in consequence of such purchase (from the Indians) the said tract of land was surveyed." Campbell's field notes show that he did in the year 1772 survey the whole west line of the proposed Totten Crossfield purchase, and ran a line from the northwest corner thereof, as determined by him, for the north line of the purchase, magnetic east about twenty-seven miles to within eight rods of the southwest corner of the plaintiff's fence — leaving about twenty miles of the north line unsurveyed. At the end of his field notes he says: "The within work was done by me, the subscriber, in the presents of sum of the Indian, who was deputed by the original proprietors to goe and attend the within survey — namely, Brant, Nicholas, Powlas, Peter, Isaac, Lawrence, Jacob, Thomas — from the end of the asforesaid line I showed the Indians the course of the line to the east of a high hill, which gave a full view to the east, and they all agreed was fully satisfied with the course to be continued, and so chose to return home without going any farther along said line." It is true that the grantee named in the Indian deed was the Crown of England, but Totten Crossfield and their associates paid the purchase money for the grant, all except five shillings, and the deed expressly states that the conveyance is made so that they may obtain grants of such land. Here, therefore, we have Campbell, on the one hand, representing the purchasers, and Indian deputies, on the other, representing the vendors, marking on the ground the north boundary line of a tract previously bought and sold between them, and both sides agreeing to the location of the line as made by Campbell. Moreover, the line called for in the deed, while not ambiguous in itself, was one which, because of the never-ceasing fluctuations of the magnetic needle, would in a short time grow doubtful and impossible to locate unless evidence of its course were immediately taken. In a sense, therefore, the deed itself calls for an immediate survey of that north line. It was surveyed in the same year, without loss of time, and agreed upon by the parties to the deed as the correct line. It appears to me, therefore, that the line so run and so agreed upon is the north line of the purchase, whether rightly or wrongly run, not in spite of the language of the deed, but rather because of it; for the deed leaves its location to actual survey, to be made on the ground and that immediately, or the words would soon become uncertain and meaningless. Campbell's line is in itself evidence and the best evidence of the location of the line in question. That evidence is corroborated in many ways. He started from the northwest corner of the tract and ran east. Near the end of his line, as stated by him, he "came" to the line run from the north branch of the Hudson river about ten miles above the forks, and at the end of fifty-five miles and thirty-two chains, as marked by Messrs. Jessup Crane, here stopped. It appears from many documents in evidence that Ebenezer Jessup was employed to subdivide the tract so purchased for the intended proprietors, and did in fact make such subdivision, and, to a very large extent, in the year 1772. Certain field notes of his, in evidence here, show that in that year he and one Crane, in the work of subdivision, ran a line of fifty-five miles from somewhere in the southeast corner of the tract to the north bounds of the tract. This is the line that Campbell intersects. Here, then, we have Campbell traversing nearly thirty miles of forest, coming from the west, and meeting the end of a line run by an independent survey in the same year coming fifty-five miles from the southeast, the end of which line was intended to mark the north line of the tract. The agreement of the two surveyors, starting from widely different points, as to the north line of the tract, is conclusive proof of the correctness of Campbell's line. Moreover, the surveyor, Medad Mitchell, surveying for the Surveyor-General in the year 1796 the south line of the tract petitioned for by McComb, and subsequently conveyed to McCormick in 1798, as McComb's purchase, great tract 2, the south line of which was the north line of Totten Crossfield's re-marked the very trees marked by Campbell as the monuments marking the south line of McComb's purchase No. 2. Again, Benjamin Wright, in the year 1800, surveying the south line of McComb's purchase, great tract 1, continued the very line run by Campbell, and re-run and re-marked by Mitchell; and thus we have four independent surveys, all made at a time not remote from the date of the Indian deed, all establishing the north line of Totten Crossfield's purchase, in identically the same place. Could there be stronger evidence to show where the line described in the Indian deed ran in the year 1772? The McCormick patent of McComb's purchase, great tracts 1 and 2, under which plaintiff claims title, granted in the year 1798, described the land purchased thereunder as bounded on the south by "a tract of land commonly called Totten Crossfield's Purchase." It does not say "a line coming west from ten miles north of Crown Point," nor does it describe it as bounded by land conveyed in such and such a deed, nor yet does it say by "Totten Crossfield's Purchase." It uses the phrase, "a tract of land commonly called Totten Crossfield's Purchase." What, then, was the tract so commonly known? The Indian deed of 1772 was not to Totten Crossfield, but to the Crown of England. It simply operated as a release by the Indians of all right of sovereignty thereover or ownership therein. In the year 1773 Totten Crossfield, and their associates, complained to the colonial government that they have not received their patents. The Revolutionary war intervened, and again, in 1785, Totten Crossfield, and their associates, in a memorial to the Governer of the State of New York, complain that no patents have as yet been issued. In fact, none had been issued, and, so far as the evidence in this case shows, none were thereafter issued, either for the whole tract or any portion of it, down to the year 1798, the year of the McCormick deed. It is not shown under what title, if any, the Indians, after their deed of 1772, held the land to the north of their grant of that year, but, whatever it may have been, the Revolutionary war put an end to any title or claim they may have had. Therefore, in the year 1798, the People of the State of New York were the absolute owners of all lands on both sides of the north line described in the Indian deed, and that deed possessed no longer any significance whatever, either as indicating how much was granted or how much was retained. Thus the State of New York was in a position to convey north or south of that line as it saw fit, and so there was, in the strict sense of the word, no Totten Crossfield purchase. That is why the McCormick patent ignores the Indian deed, ignores the theoretical north line therein mentioned, and carefully uses the words not "Totten Crossfield's Purchase," simply, but "A tract of land commonly called Totten Crossfield's Purchase." Although Totten Crossfield and their associates had received no patents, they had proceeded as if owners, had surveyed out and mapped practically the entire tract, had subdivided the same into many townships, and drawn lots among themselves for the determination of their respective holdings, and paid therefor. In their petition of 1773, March 3, they state: "That your petitioners have at a very great expense, in the presence and with the approbation of many deputies from the Indian tribes, surveyed the greatest part of the said lands, and subdivided the same into smaller tracts, so as to accomodate the different purchasers," etc. And again, in their petition of May 9, 1785: "That in consequence of such purchase as aforesaid, the said tract of land was surveyed and divided into townships of 24,000 acres each, and that lots were cast," etc. This also appears from the many maps of the various subdivisions so made, which are in evidence; and these maps, as appears from the fact that Jessup's fifty-five mile line, which ran to the northernmost limits of the subdivisions, ended by intersecting Campbell's line, give as the north boundary line the very line marked by Campbell. Further, Medad Mitchell, surveying in 1796, for the State of New York, which then was the owner on both sides of the line in question, accepted and marked for the State of New York the line marked by Campbell, and thus for itself, and for the world generally, having full power and authority over all the land, defined the north boundary line of Totten Crossfield's purchase. They could place it where they chose. They chose Campbell's line. When McCormick bought, Campbell's field notes, Jessup's maps and field notes, Mitchell's field notes, the petitions of Totten Crossfield representing that they had never received patents, were all on file in the office of the Surveyor-General. It appears to me, therefore, that when the People of the State of New York granted to McCormick the land north of "a tract of land commonly called Totten Crossfield's Purchase," they used the words advisedly, and unquestionably meant the tract as surveyed on the north by Campbell and Mitchell, as subdivided by Jessup and mapped by him, and as held, with the acquiescence of the State of New York, by the different proprietors who had drawn lots therefor. In the absence of any real "Totten Crossfield's Purchase," that, to my way of thinking, unquestionably constituted the "tract of land commonly called Totten Crossfield's Purchase," within the meaning of the deed. That it was so understood by the grantee McCormick is established past all doubt by the survey which he and his co-owners caused to be made in the year 1800 by Benjamin Wright, who went upon the ground, and in marking the south line of the purchase simply continued Campbell's line to the east line of the purchase. It seems to me, therefore, incontestible that the line run by Campbell and Mitchell, and continued by Wright, is the north line of Totten Crossfield's purchase, and the south line of McComb's purchase, great tracts 1 and 2. The markings made by Campbell, Mitchell and Wright were found by witnesses sworn in the case, and many blocks of wood were introduced in evidence counting 127, 104 and 100 annulars over the blazes, showing conclusively that the blazes were made by Campbell, Mitchell and Wright. The line so marked by blazings upon trees run, as continued by Benjamin Wright, within a few feet of Litchfield's south fence, never departing therefrom more than 100 feet. This line has constituted, and has for many years been recognized as, the south boundary line of Franklin and St. Lawrence counties and the north boundary, in part, of Essex, Herkimer and Hamilton counties; and jurisdiction has been taken in that region accordingly as land lay on one side or the other of the line so surveyed in compliance with the statute which fixed the dividing line between such counties as the north line of Totten Crossfield's purchase, and the south line of McComb's purchase. It may be observed here that Campbell's line is not a straight line, for, according to the testimony of the witnesses Wood and Lynch, the line makes no allowance for local variations, but follows the compass according to its "head sight." The plaintiff claims that the line in question must have been a straight line, and, therefore, that all local variations must be deducted; but there is nothing to show that "coming west" meant other than coming west as the needle itself pointed, without regard to the curves which it might take through local attractions. Indeed, the witness Wood says that Campbell's line followed the head sight without deduction for local variations, "as was the custom in ancient surveys." This is not contradicted. And, in the light of such custom, the phrase "coming west" may have meant west as the magnetic needle actually pointed as well as any true or theoretical magnetic west. For all these reasons I think it clearly established that the plaintiff's land is bounded on the south by the line of marked trees blazed by Benjamin Wright in the year 1800, and that the plaintiff, having shown no trespass north of this line, must fail in this action. I, therefore, direct judgment dismissing the complaint, with costs to the defendants.